Indigenous Law Bulletin
by Bill Pritchard
Community Justice Centres (‘CJCs’) commenced the implementation of an Indigenous-specific mediation service in 2002 in response to a need identified through community research. An initial pilot for the recruitment and training of Indigenous mediators was undertaken in late 2002 in the Northern CJC region, which resulted in the accreditation of 15 Indigenous mediators.
An ongoing evaluation of this pilot and the mediation and conflict management services provided by CJCs to Indigenous people and communities commenced in April 2004, with interim recommendations being acted upon by the agency during the term of the evaluation. These recommendations included a further expansion of the program throughout the rest of NSW, with two further recruitments undertaken in 2004 and 2005. These recruitments resulted in there currently being 63 Indigenous mediators available throughout the State.
The final evaluation was published in June 2006.
The evaluation has sought to assess, report and make recommendations on:
• The past practice and procedures of CJCs in the delivery of mediation and conflict management services to Indigenous people and communities.
• The appropriateness of the service currently delivered, having regard for the culturally diverse range of Indigenous communities within NSW.
• Where the service currently provided by CJCs fits within the principles, objectives and strategic directions as outlined in the NSW Aboriginal Justice Plan.
The overall structure of CJCs and whether the organisation best serves the needs of Indigenous people in NSW.
The current and future capacity/resources of CJCs to respond to those needs.
The recruitment and training of Aboriginal and Torres Strait Islander people as mediators.
The support and ongoing training of Indigenous mediators provided by CJCs.
Future best practice service delivery by CJCs of mediation, conflict management and other services to Indigenous people and communities, including examining other models of service delivery.
The evaluation was undertaken using qualitative and quantative research techniques including:
• Data analysis of client statistical information held at CJCs;
• A survey of Indigenous mediators;
• A confidential survey of Indigenous clients;
• Surveys of trainee Indigenous mediators;
• Review of literature relevant to mediation for Indigenous people in Australia.
Records indicate that as far back as 1991 the need for an Indigenous mediation service was recognised by CJCs. Prior to 2002, CJCs regularly recruited and trained Indigenous mediators through mainstream recruitment processes, resulting in the training and accreditation of 18 mediators who identified as either Aboriginal or Torres Strait Islander.
The rationale for the creation of an Indigenous-specific service was based on research which indicated the need for such a service, underpinned by such factors as:
• High levels of community/family violence;
• High levels of dysfunctional relationships with non-Indigenous community members;
• High levels of anti-social behaviour amongst young people;
• Frequent disputes with service providers (commercial, community and government); and
• Frequent disputes within Indigenous community organisations.
In October 2002, a contract was let for the provision of a pilot Indigenous-specific mediation recruitment and training program in the Northern region of NSW. This recruitment and training was developed, delivered and evaluated by Loretta Kelly, an experienced Aboriginal academic, mediation trainer and CJC mediator. Twenty-four Aboriginal and Torres Strait Islander people were selected to participate in the training and 15 of those were accredited as CJC mediators following their successful completion of the training program.
Funding was obtained in February 2004 from the Department of Education and Training, through the Elsa Dixon Aboriginal Employment Strategy, for the employment of a project coordinator and a research assistant to evaluate the CJC Northern region pilot program. Additionally, they were to work with the CJC Management Team and Network to plan and implement further recruitment and training of Aboriginal and Torres Strait Islander people as mediators across NSW, if recommended by the initial evaluation.
The initial evaluation recommended that a further two rounds of Indigenous-specific mediation training take place covering the Sydney, Western and Southern CJC regions. This training resulted in the accreditation of a further 36 Aboriginal and Torres Strait Islander mediators who are now able to provide a mediation service across NSW. In July 2005, funding was obtained from the NSW Attorney General’s Department to establish the project coordinator and research assistant positions permanently. These permanent positions were created to further expand, manage and monitor the program, ensuring that the principles of the NSW Aboriginal Justice Plan were adhered to.
The Overcoming Indigenous Disadvantage report of 2005 upholds the notion of and highlights the severe social disadvantage Indigenous Australians continue to live under. Indeed, the report indicated that outcomes have weakened in such areas as
• Victim rates for crime between 1994 and 2002;
• Substantiated child protection notifications from 1999-2000 to 2003-04; and
• Imprisonment rates for both men and women, over the period 2000 to 2004.
The report states:
[M]any of the indicators show little or no movement. A large gap between Indigenous people and the rest of the population is apparent in all of the headline indicators and most of the strategic change indicators, including those where there has been some improvement.
The Human Rights and Equal Opportunity Commission’s Social Justice Unit, in its ‘Statistical Overview of Aboriginal and Torres Strait Islander Peoples in Australia’, reports that:
[I]ndigenous people represented 22% of the total prisoner population as at 30 June 2005. The total number in prison increased by 12% over 2004 to 2005 (from 5,084 to 5,656).
The overview also highlights that Indigenous women are currently the fastest growing prison population:
[I]ncarceration rates for women generally have increased more rapidly than for men and the increase in imprisonment of Indigenous women has been much greater over the period compared with non-Indigenous women.
Intervention in the form of mediation, in the early stages of conflict, empowers the disputants with the capacity to solve their disputes before they escalate further. Such escalation often results in increasingly violent outcomes and consequential contact with the criminal justice system.
The client and mediator surveys indicate an overall level of satisfaction of Indigenous clients and mediators with CJC services and processes, including that:
• The information given during pre-mediation was appropriate;
• The outcomes of the individual mediations (agreements) were suitable and sustainable;
• There generally was an improvement in the mediated conflict/dispute;
• Co-mediation is an appropriate process for Indigenous people;
• The actual mediation process (timeframe, impartiality etc) was adhered to;
• The mediation services provided by CJCs were, in the main, culturally appropriate;
• The Network of CJC Indigenous mediators is an appropriate body for the support of Indigenous mediators and as an advisory body to CJC management.
The main areas of concern highlighted by the surveys were that:
• There was a need for improved data collection;
• Pre-mediation processes were not being undertaken by Indigenous staff;
• Clients identifying as Indigenous were not always being offered the services of an Indigenous mediator;
• Further promotion of the service to Indigenous people and communities was required;
• More culturally-relevant and ongoing training should be made available to Indigenous mediators; and
• Better mechanisms for communication between the CJC regional offices and Indigenous mediators were needed.
The trainee mediator surveys undertaken subsequent to the three stages (pilot and two subsequent recruitments) of the CJC Indigenous mediation recruitment and training indicate a continuing improvement in the content and delivery of the program. The current model as delivered at the Phase 3 training in the Western and Southern regions gained unanimous acceptance from the trainees as the appropriate model for the delivery of the Indigenous mediation training.
The evaluation found that CJCs need to continue to be receptive to the implementation of change in the referral and intake processes currently used by intake staff in relation to Indigenous clients. The adaptation of these processes is necessary so as to ensure that the needs of Indigenous people and communities are met to a standard indicated by the project and business centre aims and objectives, which are in-line with the principles of the NSW Aboriginal Justice Plan.
Improvements that could be made to the current intake and referral processes to enhance service delivery include:
• Further promotion of the service, including the further engagement of Indigenous mediators in promoting to their own communities and local Indigenous agencies;
• Improved data collection at the intake level to enhance the identification of Indigenous clients;
• That Indigenous clients should on all occasions be given the option of the services of Indigenous mediators.
All surveys and indicators point to a marked acceptance of mediation as the most appropriate model of dispute resolution for Indigenous people and communities. The surveys and associated data also indicate that the models developed by CJCs are well accepted by Indigenous people and communities.
In the past, CJCs have explored alternative models for service delivery to Indigenous communities. The current process and structure allows CJCs considerable flexibility in how they deliver their services, and alternative models could again be explored to ensure that current practices fit within the parameters of the NSW Aboriginal Justice Plan.
In addition to a mediation service, CJCs offer a conflict management service for more complex and/or multi-party disputes. This process may involve processes such as multi-party pre-mediation, facilitated meetings and any number of individual mediations as required to resolve the dispute.
CJCs acknowledge that disputes involving Indigenous people and communities can often be more complex in their nature due to varying factors, including:
• The history of Indigenous peoples’ past and present association with the ‘justice’ system;
• The extended familial nature of Indigenous society;
• The broad range of diverse culture among the various Aboriginal nations within NSW (as acknowledged in the NSW Aboriginal Justice Plan); and
• Factors which have an impact on socio-economic circumstances.
CJCs have implemented training for experienced Indigenous mediators in conflict management and are currently expanding this training to ensure that Indigenous conflict managers are available throughout the State. Since the completion of the initial conflict management training, these Indigenous conflict managers have gained access to community disputes which CJCs had previously not been able to assist with.
All the surveys and other research indicate that CJCs need to further develop improved methods of promotion of their Indigenous programs to Indigenous people and communities. CJC management has agreed that Indigenous mediators are best placed to promote the service in their own communities and training has been undertaken by Indigenous mediators in such areas as small claims mediation, solo mediation and community promotions in order to facilitate this.
Some areas for further improvement of CJC recruitment processes for Indigenous mediators have been identified. The current model used for Indigenous recruitment is almost identical in format to the mainstream model, with minor adaptations. The areas to be addressed include:
• Allowances for issues surrounding the culturally diverse nature of Indigenous society within NSW.
• The group interview may be inappropriate for some Indigenous people and further research should be undertaken to explore alternative models or processes.
• Allowances in the process for status in the community, (for example, Elders).
• Allowances for Indigenous-specific cultural issues, such as men’s and women’s business.
The evaluation of the three phases of the Indigenous-specific training indicated a marked and progressive improvement in the content and delivery of the training. CJCs have reached a benchmark of good practice service delivery with the current model. A complete redevelopment of the Indigenous training materials and processes has been undertaken to ensure that the training provided meets the needs of Indigenous people. All training is undertaken by suitably qualified Indigenous trainers and coaches whenever possible.
The Indigenous mediator survey indicates that Indigenous mediators are generally satisfied with the support they receive from CJCs. The lack of suitably qualified Indigenous mentors was a concern raised during the earlier stages of the program, however. As the mediators who qualified during the first two recruitments have gained experience in the mediation process, they are now able to participate as mentors for the most recently accredited mediators.
CJCs are in a unique position to be able to demonstrate leadership in the delivery of mediation services to Indigenous communities. The current resource of 63 Indigenous mediators lends itself to allowing CJCs to access the diverse Indigenous communities of NSW.
CJCs reported that one of their primary objectives is ‘[t]he provision of culturally appropriate ADR [alternative dispute resolution] services to Aboriginal and Torres Strait Islander communities throughout NSW’. The final evaluation findings indicate that, on the whole, CJCs have made significant improvements during the past four years in how mediation services are delivered to Indigenous people and communities, and are therefore well-placed to meet this objective. The findings and associated research further indicate that when an adaptive approach is undertaken by what is primarily a non-Indigenous organisation, effective acceptance of specific Indigenous programs is possible in the diverse Indigenous communities of NSW.
The acceptance of the program by Indigenous people and communities is reflected in the number of mediations undertaken by CJCs where at least one party identifies as Aboriginal or Torres Strait Islander. These statistics have increased from 62 in the 2001/2002 reporting period to 272 in the 2004/2005 period. There was a continued increase in the 2005/2006 reporting period, with 258 mediations undertaken in the 10 months to 1 May 2006.
CJCs’ ongoing adaptive approach allows for further adjustment and continual improvement of the pre-mediation, referral and intake procedures as they relate to Indigenous people and communities. It is especially necessary for CJCs to continue to improve their promotional methods so as to continue to gain referrals from Indigenous communities and agencies.
There may be a need indicated to further ‘Aboriginalise’ the service so as to ensure that best practice service delivery is the predominate outcome of the services provided.
CJCs need to improve pre-mediation, referral and intake procedures as they relate to Indigenous people and communities. It is especially necessary for CJCs to address the concerns raised about the current policies and procedures related to promotion and accessibility to Indigenous communities.
CJCs, as an adjunct to the ongoing evaluation of service delivery to Indigenous people, have implemented or commenced implementation of several initiatives to advance and improve the program. These include:
• Development and implementation of procedural change to the mainstream referral and intake processes to make them more adaptive and accessible to Indigenous people and communities.
• Policy, procedures and protocols are currently being developed in relation to the CJC interactions with Aboriginal and Torres Strait Islander people, agencies and communities.
CJC management is committed to all staff and mediators undertaking cultural awareness training over the next 12 months as well as the implementation of an ongoing program. The initial four pilots of this package have been conducted by qualified Indigenous trainers/CJC mediators and an evaluation of these pilots is currently being undertaken.
A more expansive role is being developed for Elders including employing Elders to gain better access to communities, and in the promotion of CJC services. Associated with this role, policies are being developed which acknowledge the unique status of Elders in Indigenous society.
CJC Regional Coordinators commenced a targeted research project in February 2006, to be conducted in consultation with the Senior Aboriginal Programs Officer. This program looks at targeting two Indigenous communities in each CJC region. The communities are chosen based on an analysis of statistics, including Bureau of Crime Statistics and Research crime figures, court referrals and CJC data. The targeted communities are also Indigenous communities where CJCs have had limited access in the past. This research should allow CJCs to further analyse the individual regional promotions strategies employed and compare these findings with the statistical results achieved, ideally leading to an increase in Indigenous clients in those targeted communities.
Commonwealth funding has been made available to CJCs through the Family Violence Partnership Program to provide community training in methods and strategies to reduce family and community violence in Indigenous communities. Training to be offered to 12 communities over the next two years includes:
• Recognising conflict in the community;
• Recognising conflict in the family;
• Elders using traditional roles to deal with disputing behaviours;
• How to access services to deal with conflict;
• Referral processes for mediation and conflict management;
• Referral processes/agencies for victims of family violence;
• Dealing with conflict through facilitated meetings;
• How to facilitate community meetings.
CJCs have developed and are in the process of developing additional Indigenous-specific training packages. Funding has been sought from the Department of Education and Training’s Elsa Dixon Aboriginal Employment Strategy to facilitate the recruitment of an Aboriginal Training Manager to further develop and implement these training packages.
The CJC Management Team has agreed that specific training for Indigenous mentors will be conducted in the 2006/2007 financial year.
The evaluation shows that the current Indigenous mediation programs conducted by CJCs continue to gain acceptance by Indigenous people and communities throughout NSW. CJCs have committed to flexibility and adaptability within the programs to ensure that the needs of individual communities continue to be met, whilst adhering to the goals and principles of the NSW Aboriginal Justice Plan.
Bill Pritchard is the Senior Aboriginal Programs Officer at Community Justice Centres, a business centre of the NSW Attorney General’s Department. He is of Wiradjuri descent, from the central west of NSW. He is a qualified Aboriginal mediator who previously was employed by the Office of Fair Trading as an Aboriginal Investigator dealing with tenancy and real estate complaints from Indigenous people.
 Community Justice Centres is a business centre of the NSW Attorney General’s Department providing a free, voluntary, confidential mediation and conflict management service to the wider community of NSW.
 The executive summary of the report is available at <www.cjc.nsw.gov.au>.
 NSW Aboriginal Justice Advisory Council, ‘NSW Aboriginal Justice Plan: Beyond Justice 2004-2014’, (2003) at <http://www.lawlink.nsw.gov.au/ajac.nsf/files/nsw_ajac_plan.pdf/$FILE/nsw_ajac_plan.pdf> at 31 May 2006.
 The Network comprises all CJC mediators who identify as Aboriginal or Torres Strait Islander.
 Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2005 (2005).
 Ibid 1.
 Human Rights and Equal Opportunity Commission, ‘Statistical Overview of Aboriginal and Torres Strait Islander Peoples in Australia’ (2006) <http://www.humanrights.gov.au/social_justice/statistics/index.html> para 9 (b) at 31 May 2006.
 Ibid 9 (a); Australian Bureau of Statistics, Prisoners in Australia 2005, ABS cat no 4517.0 (2005) 5.
 Community Justice Centres, ‘Annual Report 2004-2005’ (2005) 1.
 This a term used in the Evaluation of ATSIFAM. Chris Cunneen et al, ‘Report to the Legal Aid Commission of New South Wales’ (2004).
 All trainers are current mediators who have undertaken a minimum of Certificate IV in Workplace Assessment and Training.
 Bureau of Crime Statistics and Research <http://www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/pages/bocsar_index> at 31 May 2006.